Request By:
Mr. Jerry D. Sternstein
Planning Management Services
797 Shamrock Drive
Madisonville, Kentucky 42431
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of May 11 in which you refer to several ordinances of the City of Madisonville concerning which the question is raised as to whether or not a conflict exists with respect to certain sections of the 1980 Municipal Code (Ch. 83A KRS) that of course governs the city. You initially relate the fact that one ordinance states that every two years on odd numbered years the city council shall appoint a chief of police who shall hold his office for a term of two years subject to removal for cause by the council. The same provision of the ordinance also applies to the city attorney, treasurer, assessor and engineer.
The initial reference to the appointment of the chief of police was apparently derived from the provisions of KRS 95.700. However, this statute was repealed in 1980 when the Municipal Code was enacted. Under the present Code there is a general provision declaring, as you mentioned, that all ordinances presently in force at the time of the proposed enactment and not in conflict with the Code remain in force until changed. KRS 83A.020(2). The repeal of KRS 95.700 and the enactment of KRS 83A.130(9) which gives the mayor the exclusive power to appoint all police officers, including the chief, obviously creates a conflict between the ordinance in question and the present Code, and as a consequence the ordinance becomes void and unenforceable.
At the same time, this Office has written several miscellaneous letters addressed to Mr. James L. Noel dated March 12, 1984 and Mr. Kevin McDavid dated February 2, 1984 in which we expressed the belief that in view of the fact the Code does not establish terms for nonelective officers and employees, no ordinance can provide otherwise. Thus the terms established for the nonelective offices mentioned, aside from that of chief of police, become void in our opinion. Also, of course, the appointing power for these officers rests with the mayor as mentioned with respect to the chief of police. However, if the positions of city attorney, treasurer, assessor and engineer have been established as nonelective offices as required under KRS 83A.080(1), approval of such appointments still rests with the city legislative body pursuant to subsection (2). Such approval, however, does not apply to the chief of police or any police officer since the 1982 legislature placed police officers in the category of employees under the provisions of KRS 83A.130(9).
As to the removal factor, the 1982 legislature amended KRS 83A.080(2) by deleting the right of a city council to enact an ordinance blocking the mayor from removing any nonelective officer by providing in effect that such can be done only by statutory authorization. Police officers, however, being in the category of employees, creates a different situation as far as removal is concerned. KRS 83A.130(9) does permit the city legislative body to enact an ordinance prohibiting the removal of city employees except for cause if it so desires. Also, removal may be blocked by statutory law where the employee is under some form of civil service such as Ch. 90 KRS. We believe this answers your initial questions.
You next refer to KRS 83A.080(3) which states each appointed or elected city office existing upon the adoption of the Code shall continue until abolished by ordinance. The question is raised as to whether or not this statute refers to the office itself or does it include the city's right to continue as the appointing power, as provided in the ordinance. KRS 83A.080(3) simply refers to the creation of the office or form of employment and does not contemplate or affect the manner in which the positions are filled for the reasons previously mentioned.
Based on the above, we would be of the opinion that the ordinance in question, or at least the provisions you have referred to, would be void and unenforceable under the 1980 Municipal Code and its subsequent amendments.